Blue Circle Cement, Inc. v. Board of County Comr's of County of Rogers
| Citation | 27 F.3d 1499 |
| Decision Date | 22 June 1994 |
| Docket Number | No. 92-5174,92-5174 |
| Parties | , 24 Envtl. L. Rep. 21,539 BLUE CIRCLE CEMENT, INC., Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ROGERS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles W. Shipley of Shipley, Inhofe & Strecker, Tulsa, OK (Douglas L. Inhofe, Blake K. Champlin, and Mark A. Waller, with him on the brief) for plaintiff-appellant.
Bill M. Shaw, Asst. Dist. Atty., Claremore, OK (Gene Haynes, Dist. Atty., with him on the brief) for defendant-appellee.
Before EBEL, SETH, and KELLY, Circuit Judges.
This case arises from a municipality's exercise of its zoning authority to regulate hazardous waste disposal, recycling, and treatment within its borders. The Plaintiff-Appellant, Blue Circle Cement, Inc. ("Blue Circle"), raises both federal constitutional and state law challenges to the hazardous waste zoning ordinance enacted by the Defendant-Appellee, the Board of County Commissioners of Rogers County, Oklahoma (the "Board"). The district court upheld the Board's ordinance in a summary judgment order. We have jurisdiction under 28 U.S.C. Sec. 1291 to consider the four questions raised in Blue Circle's appeal: (1) whether the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6901 et seq., preempts the Board's ordinance; (2) whether the ordinance violates the Commerce Clause of the United States Constitution; (3) whether subjecting Blue Circle to the Board's amendment to the ordinance would be inequitable under In re Julius Bankoff, --- Okl. ----, 875 P.2d 1138 a recent decision of the Oklahoma Supreme Court; and (4) whether the Board's amendment to the ordinance constituted an unlawful exercise of police power. 1 Because we conclude that the court erred in its evaluation of the RCRA preemption and Commerce Clause claims, and thus erred in granting summary judgment, we reverse and remand for further proceedings.
Blue Circle, an Alabama corporation with its principal place of business in Georgia, operates a quarry and cement manufacturing plant in Rogers County, Oklahoma. Since opening this facility in 1960, Blue Circle has used coal and natural gas as fuel in its cement kilns. To reduce the cost of heating its kilns, Blue Circle sought to convert to Hazardous Waste Fuels ("HWFs"), which are derived from the blending of various industrial wastes and possess high British Thermal Unit ("BTU") value. 2 The Board's regulatory actions in direct response to Blue Circle's proposed fuel conversion project gave rise to this dispute.
Initially, Blue Circle concluded that the Board's approval to use HWFs was unnecessary. The zoning ordinance in effect when Blue Circle commenced its fuel conversion project in the early 1980s required industrial operators to obtain a conditional use permit to establish an "industrial waste disposal" site. See Sec. 3.13.2 of the City of Claremore-Rogers County Metropolitan Planning Commission Zoning Ordinance (the "Ordinance"). Blue Circle contended that burning HWFs in its cement kilns constituted "recycling" or "burning for energy recovery," not disposal. Because the Ordinance made no mention of recycling operations, Blue Circle argued that it was free to purchase, store, and burn HWFs at its site without first obtaining a conditional use permit. To accomplish the conversion, Blue Circle incurred design, engineering, and planning expenses in preparation for the switch to HWFs. The company entered into an agreement with CemTech, Inc., contingent upon obtaining the necessary governmental approval, to construct a storage area for HWFs and to supply HWFs to its Rogers County facility.
However, the Board disagreed with Blue Circle's interpretation of the Ordinance and informed company officials that burning HWFs in the cement kilns required a conditional use permit. On August 12, 1991, the Board adopted an advisory resolution stating that "there is no distinction between a hazardous waste alternative fuel burning facility as a recycling facility or an industrial waste disposal site or hazardous waste incinerator." The regulatory force of this advisory resolution remains uncertain, but the Board explained its action as an effort to thwart Blue Circle's attempt to circumvent the conditional use permit requirement under the original terms of Sec. 3.13.2.
On August 21, 1991, rather than apply for a conditional use permit to burn HWFs at its cement plant, Blue Circle filed suit in the United States District Court for the Northern District of Oklahoma, seeking a declaratory judgment under 28 U.S.C. Sec. 2201 that the use of HWFs did not constitute industrial "disposal." On December 2, 1991, while Blue Circle's suit was pending, the Board ended any ambiguity about the characterization of Blue Circle's use of HWFs by amending the Ordinance to include "recycling" and "treatment" sites among those facilities for which the Ordinance requires a conditional use permit. By this express language, the Board unequivocally subjected hazardous waste recycling and treatment to the same regulatory and permit scheme that was applicable to industrial waste disposal.
Blue Circle then filed an amended complaint alleging that the Ordinance as amended was preempted by RCRA, was violative of the Commerce Clause, and could not equitably be applied to Blue Circle because the company had commenced its fuel conversion project while the former ordinance was in effect. On June 23, 1992, the district court denied Blue Circle's two summary judgment motions, denied the Board's motion to dismiss, and scheduled the case for a bench trial to be held on August 3, 1992.
On the eve of the scheduled trial, however, and without affording the parties prior notice, the court removed the case from its docket. On August 4, 1992, the court sua sponte issued a summary judgment order in favor of the Board. The court held that: (1) RCRA did not preempt the Board's zoning Ordinance; (2) the Ordinance did not violate the Commerce Clause of the United States Constitution; and (3) the Board's amended ordinance was constitutional as applied to Blue Circle because Blue Circle had not acquired a vested right to use HWFs at its plant prior to the amendment. We will review in turn each of the district court's rulings which were raised in Blue Circle's timely appeal.
We review de novo the district court's summary judgment order and apply the same legal standard used by the court under Fed.R.Civ.P. 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Our de novo standard of review applies both to the court's federal constitutional legal conclusions and its determination of state law. Mares v. ConAgra Poultry Co., 971 F.2d 492, 495 (10th Cir.1992). In applying this standard, we construe the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. United States v. Hardage, 985 F.2d 1427, 1433 (10th Cir.1993).
Before addressing the merits of Blue Circle's challenge to the Ordinance, we must consider the procedural history of this litigation and Blue Circle's contention that the district court's procedures prejudiced it.
After Blue Circle filed its original complaint on August 21, 1991, the Board moved to dismiss under Fed.R.Civ.P. 12(b)(6) on September 9, 1991. One day later, Blue Circle moved for summary judgment. While both motions were still pending before the district court, Blue Circle filed an amended complaint on August 22, 1992. The court next convened a pretrial conference on June 23, 1992, during which it denied both the Board's original motion to dismiss and Blue Circle's summary judgment motion. The court scheduled a bench trial for August 3, 1992. In lieu of the scheduled bench trial, however, the court sua sponte reversed its denial of the Board's Rule 12(b)(6) motion to dismiss, converted it into one for summary judgment under Rule 56, and upheld the Ordinance on all grounds. Order of August 4, 1992.
Rule 12(b) authorizes a court to treat a motion to dismiss as one for summary judgment, provided that the court affords the parties a "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). Rule 56(c) grants the non-moving party ten days to accumulate evidence demonstrating the existence of a genuine issue of material fact prior to the court's evidentiary hearing. We have held that a court's failure to comply with the notice requirements when changing a Rule 12(b) motion to one for summary judgment may constitute reversible error. See Ohio v. Petersen, Lowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir.1978); Torres v. First State Bank of Sierra County, 550 F.2d 1255, 1257 (10th Cir.1977); Adams v. Campbell County School District, 483 F.2d 1351, 1353 (10th Cir.1973).
What drove our analysis in these cases was the obvious prejudice that inures to the non-moving party when, faced with a Rule 12(b)(6) motion, the court consults materials outside the complaint, yet deprived the non-moving party "the opportunity to be heard ... to present controverting material and ... to amend." Adams, 483 F.2d at 1353. However, a court's failure to comply with the notice requirements of Rule 56 constitutes harmless error if the dismissal can be justified under Rule 12(b)(6) standards without reference to matters outside the plaintiff's complaint. Miller v. Glanz, 948 F.2d 1562, 1566 (10th Cir.1991).
Here, we can review the district court's legal rulings because the parties had fully briefed...
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